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E-Verify 2012-2013 Update


By Hector A. Chichoni

From an US immigration compliance perspective, 2012 was an extreme busy year for E-Verify.  In light of the upcoming immigration reform, 2013 promises to be no less.  The following are a few E-Verify highlights gathered from a variety of government sources:

Made available on line:

1. Self-Assessment Guides for E-Verify users;

2. Quick Audit Report (which allows employers to quickly review their E-Verify activity);

3. The E-Verify Employers Search Tool (which allow users to see which employers are using E-Verify);

4. Tentative Non-confirmation Notices and Referral Letters in 9 additional languages;

5. E-Verify overview in Spanish.

Expanded the following services:

1. Self-check available nationwide in February 2012, giving access to everyone over the age of 16;

2. Florida became the second state to join "Records and Information from DMVs for E-Verify" (RIDE);

Incorporated the following technical enhancements:

 1. Supports mobile Web browsing as well as four major browsers: Internet Explorer (version 6.0 and above), Firefox (version 3.0 and above), Chrome (version 7.0 and above) and Safari (version 4.0 and above).

Experienced a tremendous growth:

1. E-Verify enrollment increased by 35% in 2012, and it continues to grow by more than 1,500 employers each week;

2. On January 12, 2013, there were more than 424,000 employers enrolled in E-Verify (1.2 million worksites) and, as of March 19, 2013, there are more than 432,000 employers enrolled. 

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

Alert: USCIS Corrects Form I-9's Effective Date of Use


By Hector A. Chichoni

On April 9, 2013, USCIS published a notice of correction in the Federal Register to rectify a mistake made in its prior notice of  March 8, 2013 in connection with the new version of Employment Eligibility Verification, Form I-9 (Form I-9).

In the March 8, 2013 notice, USCIS stated incorrectly the effective date as of “After May 7, 2013” in which employers can no longer use prior versions of the Form I-9.

USCIS’s correction notice of April 9, 2013, rectifies the error stating that “prior versions of Form I–9 can no longer be used effective May 7, 2013.”

In other words, employers must use the 03/08/2013 edition date of Form I-9. Employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 6, 2013. Effective May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form.

Federal law requires that every employer and agricultural recruiter/referrer-for-a-fee hiring, or recruiting/referring for a fee, an individual for employment in the United States complete a Form I-9.

 
 
 
 

USCIS Provides An Update On The 2014 H-1B Cap


By Hector A. Chichoni

Today, Monday, April 8, 2015, the United States Citizenship and Immigration Service (USCIS), issued an update on the 2014 H-1B cap stating that:

"For the first time since 2008, USCIS, reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period ... USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing." 

The content of this post does not constitute legal advice or establish an attorney-client relationship with the reader. 

If you need further information, please contact Hector A. Chichoni at hachichoni@comcast.net or at 305.960.2277. 

 
 
 
 

USCIS Announces It Has Reached The H-1B Cap


By Hector A. Chichoni

Today, April 5, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the H-1B Cap for the fiscal year 2014 has been reached. 

USCIS’s alert states that it received a “sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014,” but that it will continue to accept H-1B subject-to-cap filings until the end of the day today. The statutory cap for “regular” H-1B petitions is 65,000. 

USCIS also stated that it had received “more than 20,000 H-1B petition filed on behalf of persons exempt from the cap under the advance degree exemption.”

USCIS’s announcements states that it will implement a so called “lottery”, a computer-generated selection process, for all H-1B cap-subject petitions received between April 1 and April 5 of 2013. 

USCIS, however, did not state the number of H-1B cap-subject petitions it had received or the exact day in which it will implement the lottery or random selection process. It is expected that USCIS will provide more details sometime next week. H-1B petitions selected under the “lottery” for processing will be “receipted”, those that are not accepted for processing, will be returned to the petitioner (or representatives) along with the filing fees.

H-1B petitions, which are not subject to the 65,000 cap, such as “extensions” and “exempted” petitions, will continue to be accepted for processing by USCIS.

Previously USCIS also announced that it expected a delay in processing subject-to-cap H-1B petitions filed under “premium processing” option.  Petitioners filing under the “premium processing” option should receive an adjudication in about 30 calendar day rather than the usual 15 calendar days from filing.

 
 
 
 

Is OCAHO Gone Soft on Fines?


By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

H-1B Cap-subject Petitions Likely To Be Subject To A Lottery


On March 18, 2013, the U.S. Citizenship and Immigration Services (“USCIS” or “the Service”) announced, based  on feedback received from “stakeholders,” that it anticipates receiving “more petitions than the H-1B cap between April 1, 2013 and April 5, 2013," and that it may receive “more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013.” USCIS also stated that “this could be the first time since April 2008 that the H-1B cap will require a lottery.” 

So, what does USCIS mean by the H-1B cap requiring a lottery? It means, nothing less, that USCIS will conduct a random lottery for all H-1B cap-subject petitions, which have been accepted for processing, if the number of petitions received is significantly higher than there are numbers available under the cap.

USCIS has conducted similar random lotteries for past fiscal years. In FY2008, for example, USCIS conducted a random lottery for H-1B petitions subject to cap received for processing from April 1 to April 5, because it had received a significantly higher number of petitions, almost twice as many, for the number of available spots under he cap. USCIS, however, can implement a random lottery at any time if it begins to receive a large number of petitions for a fewer number of available spots. A good example of this type of H-1B lottery is the one USCIS conducted at the end of January 2011.

However, if an employer submits an H-1B petition to USCIS on April 1, 2013 and the petition is accepted for processing; and spots are still available under the cap, then the petition will not be subject to a lottery.

No one knows exactly how quickly the H-1B cap will be reached, but our advice to petitioners is to file the H-1B petitions by April 1, 2013 to ensure that they do not miss the FY 2014 cap, or the lottery, if one is implemented.

For Further Information If you have any questions about this posting, please contact Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship. 

 

 

 

 

 

 

 
 
 
 

I-9 Compliance Crackdowns


Reprinted with  permission of the Society for Human Resource Management (www.shrm.org), Alexandria, VA, publisher of HR Magazine. © SHRM

I-9 Compliance Crackdowns

Vol. 56 No. 2 

2/1/2011  By Hector Chichoni 

Attention to detail is critical in filling out and checking eligibility-to-work documents.

Since enactment of the Immigration Reform and Control Act of 1986 more than two decades ago, employers have failed to fully appreciate the importance of the law in terms of Form I-9 compliance. With the federal government cracking down on noncompliant I-9s, employers need to take immediate steps to get their houses in order.

Officials with the U.S. Department of Homeland Security, specifically U.S. Immigration and Customs Enforcement, know that most U.S. employers are not fully compliant, so employers are at the center of the crackdowns. The agency’s strategic plan through 2014 states it will continue targeting employers by pursuing “effective worksite enforcement.” This includes civil and criminal enforcement.  

By establishing and maintaining effective Form I-9 compliance policies, employers can prevent potential liability and mitigate many potential violations. Employers should implement effective I-9 procedures that result in accurate, consistent and uniform preparation, maintenance and, ultimately, disposal of the forms.  

In addition, employers must, in the context of Form I-9 compliance, assess their legal exposure, educate managers on legal risks, and adopt HR practices that identify and prevent liability.  

Different Versions of I-9  

U.S. Citizenship and Immigration Services (USCIS) makes Form I-9 available in English and Spanish.  

The English version must be retained, while the Spanish version can be used for translation purposes only. The exception: In Puerto Rico, employers may retain and use either version.  

Form I-9 has undergone several revisions during the last two decades, with the first occurring in 1991. Subsequent 2007 and 2009 revisions primarily updated the number of acceptable forms for establishing identity and work authorization, and eliminated unsecure or out-of-date documents.  

During 2009, Form I-9 was revised twice. Important changes included a mandate that employers accept only unexpired documents, updates to List A and List C, and the addition of “non-citizen national of the United States” to the employee’s attestation box in Section 1.  

It is critical that employers use the proper Form I-9, available at www.uscis.gov/i-9, and complete it correctly.  

All new employees must complete Form I-9 if they were hired on or after Nov. 7, 1986, regardless of citizenship.  

Filling Out I-9s

On or before the employment start date, employers must provide a new hire with Form I-9, its instructions and the lists of acceptable documents to establish identity and work authorization. Ensure that the new employee legibly and properly completes Section 1 of Form I-9 and signs the form or acknowledges the signature no later than the first day of hire.  

An employer cannot request a Social Security number when the employee is completing Section 1 unless the employer is registered for and using E-Verify. The employee must provide a physical address, not a post office box. The new employee has three business days from the employment start date to present the necessary documents to establish his or her identity and employment authorization. USCIS has issued a clarification on how to calculate the three business days for I-9 purposes. According to instructions for E-Verify, the date of hire is counted as day zero, not day one. But the safest approach is to count the date of hire as day one.  

Moreover, employers should require employees who indicate on Form I-9 that they are “aliens authorized to work” to identify specifically their status and classification on the form.

The employee chooses which documents to provide. Although this specific requirement has been in place since 1986, it is often neglected.  

Employers are responsible for completing Sections 2 and 3 of Form I-9. The new employee must provide either one original document from List A or one original document from List B (regarding identity) plus one original document from List C (regarding work authorization). Further, if an employee provides a document from List A that meets the requirements, the employer should neither request additional documentation nor complete any portion of the List B or List C parts of Section 2 of the form.  

One important distinction: Employers registered for E-Verify must, when an employee presents a document from List B, require a document with a photograph.  

Employers are responsible for reviewing acceptable unexpired original documents and for comparing the information on the documents to that in Section 1. When reviewing originals, confirm that they reasonably appear to be genuine and relate to the new employee. Examine them carefully for obvious errors.  

Employers can compare documents to pictures found in USCIS’ Handbook for Employers (M-274) or Guide to Selected U.S. Travel and Identity Documents (M-396) for obvious errors relating to font, seal, photograph alignment and document presentation. Employers registered for E-Verify must use the information contained on Form I-9 to conduct a query on the newly hired employee. Therefore, it’s important to ensure that the form is correct.  

When an employee’s work authorization expires, the employer must reverify his or her employment eligibility. If Section 3 has been already used, use a new Form I-9 by writing the name of the employee in Section 1 and completing Section 3 of the new form. The new form must be attached to the original form. The employee must present a document that shows either an extension of employment authorization or new work authorization. If an employee is unable to show current work authorization by providing a document from List A or List C, the employer cannot continue to employ the individual.  

Employers can also use Section 3 when rehiring an ex-employee within three years of his or her departure. However, doing so makes it more difficult to keep track of the expiration of documents. An employer rehiring an ex-employee within three years should use a new Form I-9 to ensure that the latest list of acceptable documents is being used.  

One important I-9 rule is the “receipt rule.” An employer may accept a receipt in lieu of a document from List A, B or C if the receipt is for a replacement of a lost, stolen or damaged document. In this case, the receipt is valid only for 90 days from the date of hire, or, for reverification, until the date that the employment authorization expires. Receipts cannot be accepted if employment is to last less than three days. When the employee provides an acceptable receipt, record the document in Section 2 of Form I-9 and write down the word “receipt” and its document number in the “Document #” space. When the employee returns and presents the actual document, cross out the word “receipt” and the number, write the actual document’s number, and initial and date the change.  

The Immigration Reform and Control Act allows, but does not require, employers to make a copy of Form I-9 documents. If the employer copies documents for one new employee, it must do so for all new employees. Copies of documents should be attached to Form I-9 for audit purposes. Federal officers have informally commented that they prefer to see a copy of the documents when going through audits. Having the copies readily available can go a long way to show that an employer has complied with the act’s verification process in good faith.  

I-9 Audits  

Employers that audit their I-9 forms can use those audits to review, revise and correct their written policies. It is therefore important that employers assess their legal exposure and conduct internal audits of the forms. If an audit uncovers incorrectly completed forms, take steps to address the deficiencies, but don’t backdate any corrections or amendments to forms. Instead, conspicuously initial and date changes when remedial steps are taken.

If deficiencies are found in Section 1, the employee must sign and date any corrections. The employer must suspend or terminate any employee discovered to be working without authorization. It is wise to consult with an attorney before suspending or terminating an employee, as wrongful termination could lead to charges of discrimination and other claims.  

Substantive Violations

Federal agents or auditors often inspect I-9s. The purpose is to identify violations that might lead to criminal prosecution as well as substantive or technical violations that might result in issuance of administrative fines or warning notices.

Since the 1996 amendment to the Immigration Reform and Control Act, the federal government distinguishes between technical errors and substantive violations.  

Examples of technical or procedural violations include failure to:  

Ensure that an individual provides her maiden name, when applicable, or his or her address or birth date in Section 1 of the I-9.

Ensure that the individual dates Section 1 at the time employment begins.

Provide the document title, identification numbers and expiration dates of proper List A documents or proper List B and List C documents in Section 2 or 3, but only if legible copies of the documents are retained with the forms and presented at the I-9 inspections.

Provide the title, business name and address in Section 2.

Provide the date of rehire in Section 3.

The federal government must provide employers at least 10 business days to correct technical violations after notification. If an employer fails to correct violations on time, it will be subject to fines.  

Examples of substantive violations include failure to:

Prepare or present Form I-9.

Ensure that the individual provides his or her printed name in Section 1.

Ensure that the individual checks a box in Section 1 attesting to whether he is a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work until a specified date.

Ensure that an alien authorized to work provides his or her alien number in Section 1, if the number is not provided in Section 2 or 3, or on a legible copy of the document that is retained with the I-9 form.

Ensure that the individual signs the attestation in Section 1.

Review and verify a proper List A document or proper List B and List C documents in Section 2 or 3.

Sign the attestation in Section 2.

Date Section 2 within three business days of the date the individual begins employment or, if the individual is employed for three business days or less, at the time employment begins.

Sign Section 3.

Date Section 3 not later than the date that the work authorization of the individual hired expires.

Penalties

Employers may be subject to fines for substantive and uncorrected technical violations. U.S. Immigration and Customs Enforcement has the power to determine if an employer knowingly hired or continued to employ unauthorized workers. If so, the employer may be fined and, in certain situations, may be prosecuted criminally. Debarment is also possible.  

Procedural consistency is critical to protect the company from discrimination claims that may arise as a result of an untrained employee going beyond the procedural and substantive I-9 rules.  

Accuracy is of extreme importance for purposes of Form I-9 compliance. Employers often complete forms but fail to pay attention to detail. Proper completion requires knowledge of complex and often confusing rules and diligence to maintain accuracy and uniformity.  

The author is an attorney with Duane Morris in Miami.”  

 
 
 
 

“E” Visas for Traders and Investors


(Article written by Hector A. Chichoni, published originally by MoneyMarket.Com in February 2011)

Throughout its history, the United States has entered into bilateral treaties of commerce, navigation, friendships and more with other countries. These treaties allow nationals and citizens from one country to enter other countries to pursue activities related to trade and investment. These individuals or beneficiaries can either obtain an E-1 visa, pursuant to trade or commerce, or an E-2 visa, pursuant to an investment. In some cases, these treaties authorize the provision of visas for purposes of trade and investment; in other circumstances, only trade and investments are allowed.

As far as trade is concerned, these treaties refer to the exchange, purchase or sale of goods and services. Goods are tangible commodities or merchandise. Services are economic activities involving outputs other than tangible goods. Services include, but are not limited to, banking, insurance, transportation, communications and data processing, advertising and accounting. Investment may take numerous forms, including cash and other financial instruments, as well as capital in the form of machinery and inventory.

The treaty applicant may be an individual or principal, a company, or an individual employed by either a principal or a company.  

The foreign national seeking an “E” visa, must be a national or a citizen of a country with which the United States has a bilateral treaty. For example, under the treaty between the United States and Spain, an individual from Spain (or company) qualifies for an “E” visa. The principal citizen of Spain applying for an “E” visa may then send another individual employee (and the company may send certain employees) to the United States in connection with the trade or investment. However, if the individual (or company) wished to send a French employee to the United States, the “E” visa could not be issued because the French employee would not have the Spanish nationality in common with the treaty country (Spain).  

Executives, managers and supervisory and essential-capacity employees may qualify for an “E” visa. Such persons should possess managerial skills and experience and should be in a position of authority and responsibility. Among the factors the government will take into consideration when deciding to issue an “E” visa are title, salary, place in the organizational structure and responsibility for discretionary decisions and directing and managing business operations. In the case of essential capacity (or skills), knowledge or skills that are required for the effective operation of the U.S. enterprise will be considered. Other factors, including degree of proven expertise in the area of specialization and the length of experience or training with the company, also will be taken into account. In addition, “E” visas can be considered for highly trained technicians and individuals assisting startup in the United States, such as qualified technical employees coming to train or supervise technicians employed in manufacturing, maintenance and repair functions. These last individuals cannot obtain an “E-1” visa.

Requirements for the E-1 Treaty Trader Visa:

A treaty between the United States and the foreign national’s country, specifically providing for trader status, must exist.

The visa applicant must be a national of the treaty country.  

Nationals of the treaty country must own at least 50 percent or more of the U.S. business enterprise.

At least 51 percent of the trade must be between the United States and the country of the trader’s nationality. The percentage of trade between the two countries may be measured from the U.S. entity’s perspective.

There must be “substantial” current—not potential—trade, indicated not so much by monetary measurements, but by volume (for instance, the number of transactions).

The foreign national (individual or employee) must be an executive, manager, essential-capacity employee or specially qualified technician.

Requirements for the E-2 Treaty Investor Visa:

A treaty between the United States and the foreign national’s country, specifically providing for investor visa, must exist.

The visa applicant must be a national of the treaty country.  

Nationals of the treaty country must own at least 50 percent or more of the U.S. business enterprise, and treaty country nationals must control the business enterprise. In some cases, such as joint ventures that by definition usually involve 50:50 ownership, control may suffice to satisfy the requirements.

Business enterprise must be existing or in active process of formation.  

There must be a “substantial” investment.

If the investor is an individual, he or she must be coming to the United States to “develop and direct” the business. Accordingly, the (individual) investor must have a controlling interest in the business. Where the investor is a company, employees of the corporate investor must be employed in an executive, managerial or other responsible capacity, as described above.

Applications are usually submitted to the U.S. consulate or embassy in the treaty country, though one may seek a change of status to “E” treaty classification after arriving in the United States in a different status, such as B-1 business visitor. However, what is often considered the better approach is to apply at a U.S. consulate outside of the United States because only U.S. consular posts issue visas that permit travel to the United States.

The individual’s spouse and unmarried children under 21 years of age may also be issued “E” visas. They may accompany or later follow to join the principal E-1 visa holder or E-2 visa holder. Spouses of E-1 and E-2 visa holders may work (a work permit must first be approved) during the period of time that the principal E-1 / E-2 visa holder holds valid “E” visa status. Children, dependent of the principal visa holder, may not work in the United States, though attending school is permitted. Spouses and children may remain in the United States for the same length of time as the principal “E” visa holder.  

The length of the visa validity period varies, depending on “reciprocity” and other factors, such as the strength of the underlying visa application case. “E” visas are issued for either three or five years and are renewable.  “E” status, however,  is given in two year increments at the time entry into the United States.

Hector A. Chichoni is a partner and the chair of the Florida Immigration Practice at Duane Morris. He focuses his practice in the area of U.S. and global immigration law. He can be reached at hachichoni@duanemorris.com or 305.960.2277. 

 
 
 
 

Rick Scott Issues Executive Orders on E-Verify


On January 4, 2011, Republican Gov. Rick Scott of Florida issued executive order No. 11-02, which effective immediately, directs Florida state agencies under his direction and any contractors or subcontractors with those agencies to use E-Verify to check the work authorization of all present and future employees. Governor Scott’s order was issued, in part, to fulfill a campaign promise that would “require all Florida employers to use the free E-Verify system to ensure that their workers are legal.” However, on January 4, the governor’s campaign promise fell short of making E-Verify mandatory for all employers. It still remains possible that Governor Scott could attempt to make E-Verify mandatory, especially if the Arizona law is held to be constitutional.

E-Verify is the free Internet-based system administered by the U.S. Department of Homeland Security’s Bureau of Citizenship and Immigration Services (“USCIS”) that uses Social Security Administration (“SSA”) data to verify an individual’s work authorization. However, in order for E-Verify to conduct its check, employers must draw information from Form I-9, Employment Eligibility Verification.

According to the U.S. Department of Homeland Security, more than 240,000 businesses nationwide and over 10,000 in Florida have signed up for E-Verify. But E-Verify appears to present some challenges. According to recent federal reports, the program is unable to detect unauthorized workers more than half the time (54%) because its antifraud devices, which appear to be practically nonexistent, cannot detect identity theft. Moreover, a report issued by the U.S. Government Accountability Office (“GAO”) indicates that inaccuracies and inconsistencies in recording employees’ names will continue to produce erroneous Tentative Nonconfirmations (“TNCs”). According to USCIS, of 22,512 TNCs resulting from name mismatches in fiscal year 2009, approximately 76 percent, or 17,098 TNCs, were for citizens, and approximately 24 percent, or 5,414 TNCs, were for noncitizens. In Rhode Island, for example, E-Verify was so conflict-ridden that incoming Governor Lincoln Chafee terminated it the day after Governor Scott issued the order to adopt it.

There is an increased emphasis on employer compliance under the Obama administration. With employers facing such a multitude of potential penalties and sanctions, employers may want to consider taking proactive steps, such as putting their I-9 compliance “houses” in order and not delaying the auditing of their I-9 forms. Even further, at a recent IMAGE signing ceremony, John Morton, assistant secretary of Homeland Security for U.S. Immigration and Customs Enforcement (“ICE”), announced the creation of an employment compliance inspection center in Arlington, Va. The center will house 15 new I-9 auditors who will help field offices around the country to expedite Form I-9 audits. At the signing, Morton said, “Many of our regional offices or our local offices simply don’t have the manpower to conduct that kind of inspection or investigation” to audit US employers and that the new center will “ensure us to have the capacity to do a lot of large-scale audits.” Unless the Republicans win the next presidential election (so far, President Obama is holding at 53% approval rating, according to CNN), the Obama administration shall continue targeting employers for I-9 compliance. The creation of such a center, dedicated exclusively to I-9 audits, is unprecedented and indicative that compliance will not only continue, but also is likely to increase.

 
 
 
 
 

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.